Here are some other considerations about Walker's decision in the federal trial over the California Marriage Amendment, voted in as Proposition 8. Specifically, I've written a bit about sex differences, the federal DOMA, and bad precedents.
[Read the considerations after the jump.]
Sex Differences
Walker's decision denies substantial differences between the sexes. Yet the federal government treats men and women differently. The military draft and numerous programs and commissions, the "Violence Against Women Act" and other laws are some glaring examples.
Culturally and socially, the differences are even more pronounced, despite Walker's assertion to the contrary. What man introduces his family as "Here's my spouse, Jane, and my child, Richard, and my other child, Hillary?" He says, "Here's my wife, Jane, my son, Richard, and my daughter, Hillary." When a married couple have one boy or multiple boys, people ask "Are you going to try for a daughter?" and vice-versa. When introducing our parents to people, we say "This is my mother, Betty, and my father, Harry." We don't say "This is my parent and my other parent." When a woman is expecting or has just delivered, what is one of the questions that is always asked? "Boy or girl?
Even an organization like the National Organization for Women, or groups with "Lesbian" and "Gay" in their name are making a distinction.
Federal Defense of Marriage Act
As far as I can see, this ruling did not declare DOMA unconstitutional. (That would likely be part of the SCOTUS case, I would think.) The ruling in the Massachusetts case, if I understand it correctly, simply is that the federal government can't say someone isn't married if their state has given them a marriage license. But California wasn't giving marriage licenses to brideless or groomless couples. Doesn't that mean that this decision was in violation of DOMA, which itself says that marriage is between a man and a woman, and the principle that states are allowed to set conditions on marriage licensing?
It is also interesting to note that the Prop 8 case had testimony in which DOMA and "Don't Ask, Don't Tell" were cited as unfair discrimination against homosexual people, when both have more to do with homosexual or same-sex behaviors. They were cited as examples of how homosexual people are a suspect class. The argument is circular. One existing law distinguishing between behaviors is cited in striking down another law distinguishing between the same behaviors, under the assumption that the first law is wrongly discriminatory, when that is precisely the question being addressed. Is it permissible for a government to treat different behaviors (homosexual and heterosexual) and different kinds of associations (inclusive of both sexes or exclusive to one of the sexes) differently?
It is the same thing as saying, "The Apostle Paul's letters are true, because The Apostle Paul says in his letters that they are."
Bad Precedents
It makes me wonder how many other "first things" can be hauled into court and changed by a judicial fiat. There's nothing in the Constitution that says that minor children - absent neglect/abuse/abandonment/willful termination of rights - belong to their parents. Testimony and reasoning used in this very trial (a biological connection doesn't matter, neither mothers nor fathers are needed, adoption, infertility, etc.) could be used to declare that children de facto belong to the state, or that a family (let's say...the Duggars) should have to give some of their children to a same-sex couple. After all, there's no difference between same-sex couples and both-sexes couples, so it must be mere bigotry preventing the same-sex couple that wants to raise children from having children of their own. That may sound preposterous, but so did the idea of "same sex marriage" at one point.
The Duggars can point to their biological connection to their children, but "numerous studies" have shown children do just fine with nonbiological parents. The Duggers can say that they made the children themselves, together, but doesn't that imply adoptive parents or parents who used third-party reproduction have an inferior relationship to the children? Portraying other relationships as inferior is not allowed.
Now, I know that the Constitution was meant to limit and instruct government as to what it can do, not be a list of all of our rights. But that's not the way this judge or many other judges read it. The concept of natural rights has been thrown out the window. And when a disadvantaged group wants something, they have to be given it. Surely, if some of our earnings can be confiscated by a government, so can some of our progeny. Children are already being treated like commodities anyway. State (Counties) issue birth certificates, just like they issue marriage licenses - in recognition of a natural thing that has been taking place for all of human history. So, if Chuck and Larry want your child, isn't the government compelled to remedy the inequality?
Do I think this will happen any time soon? No, but the reasoning is the same. Bad precendents are used to make more bad changes.
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